Gannaway v. Street Improvement District No. 32

• Decision Date: 19 May 1924
• Docket Number: 395
• Citation: 262 S.W. 22,164 Ark. 407
• Parties: GANNAWAY v. STREET IMPROVEMENT DISTRICT NO. 32
• Court: Arkansas Supreme Court

262 S.W. 22

164 Ark. 407

GANNAWAY v. STREET IMPROVEMENT DISTRICT NO. 32

No. 395

Supreme Court of Arkansas

May 19, 1924

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

Frauenthal & Johnson and Wallace Townsend, for appellant.

The omission of certain property in the district rendered same invalid, because in violation of the Constitution, art. 19 § 27, providing for a uniform assessment. 48 Ark. 371; 48 Ark. 251; 125 Ark. 163. The election of a commissioner who was not a property owner, as required by C. & M. Dig., § 5652, invalidates all subsequent proceedings. 86 Ark. 1. The confusion in the assessment of benefits in the original district with the assessment in the annex renders both assessments void. 125 Ark. 65; 154 Ark. 349.

Horace Chamberlin, for appellee.

All acts and duties of the board have been performed by at least two legally qualified members, which constitutes a majority within the meaning of § 5717, C. & M. Digest. Green was at least a de facto member of the board. 38 Ark 150. See also 52 Ark. 356; 90 Ark. 335; 126 Ark. 231; 134 Ark. 535; 32 Ark. 666; 67 Ark. 484; 133 Ark. 277. The presumption of law in favor of the validity of the assessment as made is not overcome by the facts, and, this being true, the assessment must stand. 158 Ark. 610. The seven inches of ground omitted is too slight to be considered in comparison with the whole. 87 N.E. 383; 27 Ark. 20.

OPINION

HUMPHREYS, J.

This is a suit by property owners in Improvement District No. 362 and an annex thereto attacking the validity of the assessments and all the proceedings of the board of improvement appointed by the city council for the district. The bill of appellants was dismissed by the chancery court of Pulaski County for the want of equity, and an appeal from the decree of dismissal has been duly prosecuted to this court.

Appellants contend for a reversal of the decree upon the following grounds: first, because one of the three commissioners for the district, appointed by the city council, was not a property owner therein; second, because the benefits were not assessed upon a strip of land seven inches wide by 150 feet long, situated between two lots in one of the blocks in the district; and because the assessments of the benefits for both the district and the annex were made in the same book recapitulated on the same page, under one certificate from the board of assessors and one certificate from the clerk.

It is contended that all the proceedings of the board are invalid because J. W. Green, one of the commissioners appointed by the city council, was not an owner of real estate in the district at the time of his appointment. Section 5652 of Crawford & Moses' Digest contains the following provision: "* * * the city council shall at once appoint three persons, owners of real property therein (referring to the district), who shall constitute a board of improvement for the district." This statute is mandatory in the sense that the council must appoint three property owners in the district to direct its affairs, but it does not follow that, because one of the persons appointed was ineligible to serve, his ineligibility rendered the proceedings of the board invalid. It is provided by § 5717, Crawford & Moses' Digest, that "a majority of said board shall constitute a quorum for the transaction of business and the performance of the duties enjoined by this act." The record reflects that the other two members of the board were owners of real estate in the district and eligible to act, and that the acts complained of were had and done when all three commissioners were present and participating in the proceedings. This renders it unnecessary for us to determine whether J. W. Green was a de facto commissioner. Moreover, as hereinafter more fully appears, the validity of the assessments was not attacked until after the expiration of the thirty days allowed by the statute for that purpose.

The record reflects that seven inches of land fronting on Izard Street and running back about 150 feet, lying between two lots...